642 F.2d 458 | D.C. Cir. | 1980
Lead Opinion
Petitioners, eleven manufacturing concerns
The Act requires the Administrator to control the spread of noise pollution through regulations fixing federal maximum noise emission levels for designated products.
We observe initially, however, that we lack jurisdiction to consider many of the issues petitioners pose. To the extent relevant, Section 16(a) of the Noise Control Act provides that a “petition for review of action of the Administrator . in promulgating any standard or regulation under section 6 . . .of this Act . may be filed” in this Court.
I. THE REGULATORY SCHEME
Section 6(c)(1) of the Noise Control Act authorizes the Administrator to set decibel (dBA) limits on noise emissions.
The primary testing phase is production verification.
Production verification is supplemented by EPA’s selective enforcement auditing (SEA) program.
In the event of an SEA failure, the regulations authorize imposition of a third testing procedure. Upon rejection of any batch sequence,
II. PRODUCTION VERIFICATION
Petitioners’ first challenge is addressed to the production verification regulation,
Petitioners’ claim of insufficient notice of the annual reverification requirement must be rejected. Their argument is premised on an allegation that the proposed verification regulation required reverification of a configuration only when one of the basic parameters of identification underwent modification.
This scenario is, however, unsubstantiated. The proposed regulation
Nor can we in any event agree with petitioners’ characterization of the annual re verification requirement as unjustifiable. The reasonableness of the annual test is apparent when the testing program is viewed in its entirety. Production verification, without more, involves actual testing of but one compressor per configuration.
It must be recognized, too, that while initial verification is the foundation of the testing scheme, it does no more than demonstrate that at the time of testing the manufacturer has the working capability to produce complying compressors. Petitioners’ argument that periodic scrutiny of that capability is unwarranted fails to acknowledge variables inherent in the production process which, in the course of a year, might well affect this capability.
This requirement is wholly consistent with the announced purpose of production verification. Confirmation of the control technology of a manufacturer and his ability to apply that technology in a manufacturing context is necessarily a continuing task necessitating, at the least, a periodic testing program; adequate but less burdensome verification to assure environmental protection is not otherwise practicable;
III. SELECTIVE ENFORCEMENT AUDITS
Petitioners’ second challenge is directed at the selective enforcement audit program.
Relying upon the broad scope of his statutory authority, the Administrator insists that neither cause nor any other threshold trigger is required before testing may be ordered.
We are well aware of the judicial disdain traditionally accorded standardless regulations.
Despite petitioners’ hue and cry, however, the litigation before us now does not present such a problem. The criteria for SEA compliance are readily ascertainable from the regulations;
Imposition of an SEA requires further compliance testing by the manufacturer so that a valid assessment of his products’ conformity with applicable standards may be made and the information thus obtained may be reported to the agency. As a practical matter, this mechanism functions as an early stage of the oversight program. On the basis of data gathered from SEA test results, EPA is able to determine whether further testing is warranted. Consequently, what petitioners are in effect demanding is a statement defining the circumstances that will set the follow-up process in motion.
We perceive no justification for compelling the agency to furnish this information. Petitioners’ legitimate interests lie in advance knowledge of the standards by which compliance will be judged, not of the specific conditions under which EPA will choose to utilize its limited resources to scrutinize the degree of compliance with the law. Admittedly, without express standards establishing precise guidelines, application of the SEA regulation is subject to abuse, but this is true of any testing capability. The solution lies not in a challenge to the facial validity of the program itself, for that is not where the potential for abuse exists. Rather, objection is more appropriately aimed at a particular application of the program, where it can be reviewed against the backdrop of its own particular circumstances. Accordingly, we find the Administrator’s SEA regulation sufficiently precise on its face to withstand the present attack, and pretermit further review to a separate action impugning its application for abuse, threatened or consummated.
IV. CONTINUED TESTING
In the event that a batch sequence
We agree that the circumscription complained of unduly and unreasonably restricts the hearing provided for by the regu
One of the most important safeguards of the rights of litigants ... in proceedings before an administrative agency vested with discretion, is that it cannot rightly exclude from consideration facts and circumstances relevant to its inquiry which upon due consideration may be persuasive weight in the exercise of its discretion.71
The Administrator contends that since failure of an SEA is the only precondition to subsequent testing under the regulation, it is sufficient that the hearing encompass that issue alone. This position is not, however, congruous with the scope of the regulation, which further contemplates a discretionary determination as to whether “any or all” compressors in the failing configuration must undergo more testing.
V. COMPLIANCE COSTS
The final reviewable challenge presented to us involves primarily an application of the mandate found in Section 6(c)(1)
When analyzed, however, petitioners’ complaint is not persuasive. Certainly the absence of an express limit on the number of test requests puts a precise calculation of potential costs out of the question. Nonetheless, there is no basis in either the express statutory language or its legislative history to require such precision. The Act mandates no more than that in formulating regulations the Administrator take into account reasonable estimates as to the cost of compliance.
Moreover, a requirement limited to reasonable estimates of cost, based upon anticipated innovation of the SEA program, is consistent with petitioners’ own earlier-proffered interpretation of the statutory provision covering the SEA regulation. Petitioners urged this court to require the Administrator to preface SEA requests with a finding of “cause to believe non-complying compressors are being distributed in commerce.”
VI. CONCLUSION
Petitioners have presented several challenges to the regulations implementing the provisions of the Noise Control Act of 1972 in its application to portable air compressors. While the focus of many of the issues pressed is on provisions outside the jurisdictional grant found in Section 16(a) of the Act, and thus are immune from our review, the Administrator’s product-testing program has received our scrutiny. Viewed in its entirety, it is clear that this integrated testing scheme is basically reasonable. The need for annual reverification of a compressor manufacturer’s production capability cannot soundly be doubted. The selective enforcement auditing program is facially valid. Although a potential for abuse exists in its application, resolution of that problem is best left to consideration in the context of a specific decision to invoke the program. On these aspects of the litigation, we affirm.
The regulatory scheme, however, is deficient in that it unduly limits the scope of the hearing provided upon failure of an SEA. Reasonableness demands that evidence relevant to the scope of any order that may issue upon such a failure be considered by the agency. We hold this feature of the regulations invalid and, to enable corrective measures, we remand this litigation to EPA for further proceedings.
So ordered.
ORDER
Upon consideration of petitioners’ petition for rehearing, of petitioners’ supple
ORDERED, by the Court, that petitioners’ aforesaid petition for rehearing is denied for the reasons set forth in the Opinion filed for the Court herein this date.
Opinion PER CURIAM.
. Petitioners are Atlas Copco, Inc.; Chicago Pneumatic Tool Company; Dresser Industries, Inc., Le Roi Division; Gardner-Denver Company; Ingersoll-Rand Company; The Jaegar Machine Company; Joy Manufacturing Company; Quincy Compressor Division, Colt Industries Operating Corporation; Schramm, Inc.; Gordon Smith & Company, Inc. and Worthington Compressors, Inc.
. Brief for Petitioners at 3.
. Pub.L.No.92-574, 86 Stat. 1234 (1972), 42 U.S.C. §§ 4901 et seq. (1976).
. 40 C.F.R. pt. 204 (1977). Citation of regulations hereinafter is to that source.
. Noise Control Act of 1972, §§ 2(b), 6(a)-(c), 42 U.S.C. §§ 4901(b), 4905(a)-(c) (1976).
. 39 Fed.Reg. 22297 (1974).
. Id. at 22298-22299.
. 41 Fed.Reg. 2162 (1976), codified in 40 C.F.R. pt. 204 (1977).
. 40 C.F.R. §§ 204.55-10, 204.57-1 and -8 (1977).
. The testing regulations by design leave actual testing of products in the hands of individual manufacturers to the greatest extent possible. This approach, with its built-in conflict of interest, while considered less burdensome to the parties involved, calls out loudly for a total regulatory scheme capable of providing a check on manufacturer participation. The Administrator’s selective enforcement auditing program, described in Part I infra, coupled with the agency’s inspection and monitoring programs, attempt to satisfy this need.
. 40 C.F.R. §§ 204.4, 204.53, 204.56 (1977).
. Id. § 204.4 (1977).
. Id. §§ 204.4(f), 204.5-6, 204.55-1, 204.55-11, 204.56(b)(2), 204.57-l(f), 204.59 (1977).
. Noise Control Act of 1972, § 16(a), 42 U.S.C. § 4915(a) (1976). Section 16(a) also authorizes review of standards and regulations promulgated under §§17 and 18, which apply respectively to railroads and motor carriers and consequently have no role in this case.
. See Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379-1380, 39 L.Ed.2d 577, 588 (1974); Koch v. Zuieback, 316 F.2d 1, 3 (9th Cir. 1963).
. 195 U.S.App.D.C. 90, 600 F.2d 904 (1979).
. The monitoring and inspection regulations, cited supra notes 11, 12, were promulgated pursuant to § 13 of the Act, 42 U.S.C. § 4912 (1976). Some enforcement regulations, 40 C.F.R. §§ 204.5-6, 204.55-1 (1977), stem from § 10, 42 U.S.C. § 4909 (1976), and others, 40 C.F.R. §§ 204.4(f), 204.55 11, 204.56(b)(2), 204.57-1(f), 204.59 (1977), from § 11, 42 U.S.C. § 4910 (1976).
. 42 U.S.C. § 4905(c)(1) (1976).
. Although §§ 6 and 13 of the Act, 42 U.S.C. §§ 4905, 4912 (1976), arguably overlap in authorizing the Administrator to establish testing procedures, we deem it sufficient for our jurisdiction that 40 C.F.R. §§ 204.55-10 and 204.57-1, 8 (1977) are within the scope of § 6.
. 42 U.S.C. § 4905(c)(1) (1976).
. Id.
. 40 C.F.R. § 204.55 (1977).
. A test compressor must have been assembled by use of the manufacturer’s normal production process, and must be one that will be sold or offered for sale in commerce. 40 C.F.R. § 204.55-5 (1977). Without prior EPA approval, a test compressor is not to be prepared, tested, modified, adjusted or maintained in any manner save as part of the manufacturer’s prescribed procedures. Id. § 204.55-6 (1977).
. A “compressor configuration” is the basic classification unit of a manufacturer’s product line. It is comprised of compressor lines, models, or series which are identical in all material respects with regard to specified parameters. Id. §§ 204.51(d), 204.55-3 (1977).
. Id. § 204.55-2 (1977).
. Id. § 204.55-2(c)(2) (1977).
. Id. § 204.55-2(c)(1)(ii) (1977). A “category” consists of a group of compressor configurations that are identical in all aspects with regard to specified parameters. Id. §§ 204.51(e), 204.55-2 (1977).
. Id. § 204.55-2(c)(2) (1977).
. Id. § 204.55-10(a) (1977). Section 204.55-3 (1977) provides:
(a) A separate compressor configuration shall be determined by each combination of the following parameters:
(1) The compressor type (screw, sliding vane, etc.)
(2) Number of compressor stages
(3) Maximum pressure (psi)
(4) Air intake system of compressor:
(i) Number of filters
(ii) Type of filters
(5) The engine system:
(i) Number of cylinders and configuration (L-6, V-8, V-12)
(ii) Displacement
(iii) Horsepower
(iv) Full load rpm
(6) Type cooling system, e. g., air cooled, water cooled
(7) Fan:
(i) Diameter
(ii) Maximum fan rpm
(8) The compressor enclosure:
(i) Height, length, and width
(ii) Acoustic material manufacturer, type, part number
(9) The induction system (engine):
(i) Natural
(ii) Turbocharged
(10) The muffler:
(i) Manufacturer
(11) Manufacturer part number
(iii) Quantity of mufflers used
. Id. § 204.55-10(a) (1977).
. Id. § 204.57 (1977).
. Id. § 204.57-1(a)-(c) (1977). The regulations do not specify the conditions under which an SEA request can or will be made.
. Id. § 204.57-1(d) (1977).
. See id. § 204.57 (1977).
. The Administrator has established permissible failure levels to be employed in judging SEA test results. See id. pt. 204, Appendix I (1977). Thus, an SEA is “passed” if the number of failing compressors is equal to or less than the maximum designated as acceptable, while it is “failed” if the number of rejected compressors exceeds the permissible failure rate.
. 41 Fed.Reg. 2170 (1976).
. A “batch” is a collection of compressors of the same category or configuration, as designated in a test request by the Administrator. 40 C.F.R. § 204.51(j) (1977). Rejection of a batch sequence means that the number of rejected batches in the sequence is less than the sequence acceptance number as determined by the appropriate sampling plan. Id. § 204.51(s) (1977). See note 35 supra.
. Id. § 204.57-8(a) (1977), as amended by 42 Fed.Reg. 61455 (1977).
. 40 C.F.R. § 204.55-10 (1977).
. 5 U.S.C. § 553(c) (1976).
. 41 Fed.Reg. 2170 (1976).
. See note 29 supra.
. Brief for Petitioners at 40.
. 39 Fed.Reg. 38186 (1974).
. Id. at 38200.
. Id. at 38189.
. Portland Cement Ass’n v. Ruckelshaus, 158 U.S.App.D.C. 308, 327, 486 F.2d 375, 394 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
. See text supra at notes 23-25.
. See text supra at notes 27-28.
. For example, the wear and tear on a manufacturer’s machines over a year’s time, or error inevitably resulting from human involvement in the production process, are variables that might upset the manufacturer’s compliance capability even though the basic parameters of a configuration remain unchanged.
. The infrequent use of SEA testing contemplated by EPA also makes it an inadequate substitute for annual reverification.
. Certainly adequate alternative testing might substitute for the required configuration reverification. It is difficult, however, to conceive of any procedure less burdensome.
. “Model year” is defined as the manufacturer’s annual production period that includes January 1 of such calendar year. If the manufacturer has no annual production period, the term refers to the calendar year. 40 C.F.R. § 204.-51(c) (1977).
. Id. § 204.55-10 (1977).
. Id.
. Id. § 204.57 (1977),
. See note 32 supra.
. 41 Fed.Reg. 2167 (1976).
. As the Administrator notes, section 6 of the Act unqualifiedly authorizes “testing procedures necessary to assure compliance with the emission standard.” Brief of Respondent at 22.
. 42 U.S.C. § 4905(c)(1) (1976).
. See cases cited infra notes 63-64.
. See cases cited infra notes 63-64.
. See, e. g., South Terminal Corp. v. EPA, 504 F.2d 646, 670 (1st Cir. 1974).
. Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); South Terminal Corp. v. EPA, supra note 63.
. See 40 C.F.R. § 204.57 (1977).
. See South Terminal Corp. v. EPA, supra note 63, 504 F.2d at 670-671.
. See note 37 supra.
. 40 C.F.R. § 204.57-8 (1977), as amended by 42 Fed.Reg. 61455 (1977).
. Originally, the contested regulation made no provision for a hearing. Following settlement negotiations, EPA agreed to propose an amendment to § 204.57-8 that would permit a hearing on the limited questions noted in text. Consequently, the Administrator, in his brief, initially raised a ripeness defense to petitioners’ argument on this matter. Brief for Respondents at 25-26. The Administrator’s position was that review of the entire continuum of testing procedures is premature prior to promulgation of the stipulated hearing amendment. However, between submission of the briefs and oral argument, a final regulation in accord with the stipulation was issued. 42 Fed.Reg. 61455 (1977). Thus, while perhaps petitioners’ argument on this matter was not ripe at the time this review was initiated, it is now. “[R]ipeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of [initiation] that must govern.” Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320, 351 (1974); see also Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
. E. g., National Airlines, Inc. v. CAB, 116 U.S.App.D.C. 114, 117, 321 F.2d 380, 383 (1963); Clarksburg Publishing Co. v. FCC, 96 U.S.App.D.C. 211, 215, 225 F.2d 511, 515 (1955).
. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 177, 61 S.Ct. 908, 923, 85 L.Ed. 1251, 1271 (1941) (dissenting opinion) (citations omitted).
. See text supra at note 68.
. Pittsburgh Plate Glass Co. v. NLRB, supra note 71, 313 U.S. at 177, 61 S.Ct. at 923, 85 L.Ed. at 1271 (dissenting opinion).
. 42 U.S.C. § 4905(c)(1) (1976).
. Petitioners raise questions concerning the application of the cost-of-compliance mandate to two other provisions subject to our review. They first claim that the inadequacy of EPA’s data on cost of compliance is demonstrated by the exclusion of compressors of 600 cubic feet per minute (cfm) capacity or larger in the agency’s computations on the cost of attaining a 76 dBA sound emission standard with a 3 dBA production tolerance. Brief for Petitioners at 51. It appears, however, that petitioners misread the study EPA employs on this point. A supplementary economic impact analysis prepared for EPA by General Electric-TEMPO does indicate an absence of available data on 600 cfm compressors, though there seems to be no problem with larger models; and, having found the data comparable, the study substituted its 750 cfm findings for the 600 category. Joint Appendix (J. App.) 200 204. Thus, there is no basis for the finding of inadequacy urged by petitioners.
Petitioners also urge that because EPA’s Background Document, J. App. 98-196, in analyzing testing costs, noted that production verification costs could be expected to decrease by reason of a manufacturer’s ability to utilize the initial verification report in subsequent years, it is not current with the final regulations requiring annual reverification. Again, petitioners’ point is not well taken. This statement is completely consistent with the regulations as ultimately promulgated. Despite petitioners’ protestations to the contrary, the fact remains that reverification waiver is distinctly possible where parameter modifications have not occurred and, accordingly, the Background Document’s reference to decreased cost possibilities is not inaccurate.
. Brief for Petitioners at 50.
. Section 6(c)(1), 42 U.S.C. § 4905(c)(1) (1976), provides:
Any regulation . . . respecting a product shall include a noise emission standard . . . taking into account . . the degree of noise reduction achievable through the application of the best available technology, and the cost of compliance.
. Brief for Petitioners at 34-38; see text supra at notes 56-66.
Rehearing
SUPPLEMENTAL OPINION ON REHEARING
Petitioners in this ease have sought judicial examination of regulations promulgated by the Environmental Protection Agency (EPA) pursuant to the Noise Control Act of 1972.
In Chrysler, we held that Section 16(a) of the Act, which vests judicial review in the Court of Appeals for the District of Columbia Circuit, confers jurisdiction solely over administrative actions taken pursuant to Section 6 or either of two other provisions not here relevant.
1. “Vicarious Liability"
Petitioners first challenge Section 204.5-6(b) of EPA’s regulations,
Petitioners argue that, since in Chrysler we reached an issue of vicarious liability for noise emission violations, we must do so here as well. But the provision there at issue dealt with allocation of manufactur
2. Production Projections
Petitioners also challenged the validity of Section 204.53(b) of the regulations,
Ordinarily, of course, a stay issued pursuant to Federal Appellate Rule 8(a)
3. Submission Requirements
Petitioners next seek review of Section 204.56(a)(1) of the regulations, which empowers the Administrator to “require that any compressor tested or scheduled to be tested pursuant to these regulations ... be submitted to him, at such place and time as he may designate, for the purpose of conducting tests....”
4. Percentage Requirements for Conformity
Finally, petitioners challenge Section 204.55-1 of the regulations, which requires that every new compressor comply with the applicable performance standards.
In sum, we lack jurisdiction to resolve any of petitioners’ current complaints. We so stated in our earlier opinion,
Denied.
. Pub.L.No.92-574, 86 Stat. 1234 (1972), 42 U.S.C. §§ 4901 et seq. (1976) [hereinafter cites as codified].
. 195 U.S.App.D.C. 90, 600 F.2d 904 (1979).
. Atlas Copco, Inc. v. EPA, 206 U.S.App.D.C. -, -, 642 F.2d 458, 461 (1979).
. Chrysler Corp. v. EPA, supra note 2, 195 U.S.App.D.C. at 93, 600 F.2d at 907. The other two provisions relate to railroad and motor carrier noise emission standards. Id.
. See 42 U.S.C. § 4905 (1976).
. Atlas Copco, Inc. v. EPA, supra note 3, 206 U.S.App.D.C. at -, 642 F.2d at 461 (footnote omitted).
. 40 C.F.R. § 204.5-6(b) (1979).
. Atlas Copco, Inc. v. EPA, supra note 3, 206 U.S.App.D.C. at - n.17, 642 F.2d at 461 n. 17.
. 42 U.S.C. § 4909 (1976).
. 42 U.S.C. § 4905(d)(1) (1976); see Chrysler Corp. v. EPA, supra note 2, 195 U.S.App.D.C. at 103, 600 F.2d at 917.
. 42 U.S.C. § 4915(a) (1976); see Chrysler Corp. v. EPA, supra note 2, 195 U.S.App.D.C. at 103, 600 F.2d at 917.
. 40 C.F.R. § 204.53(b) (1979).
. Atlas Copco, Inc. v. EPA, No. 76-1354 (D.C. Cir. Apr. 27, 1978) (order).
. Fed.R.App.P. 8(a).
. FTC v. Food Town Stores, Inc., 547 F.2d 247, 249 (4th Cir. 1977).
. Atlas Copco, Inc. v. EPA, supra note 3, 206 U.S.App.D.C. at - n.11, - n.17, 642 F.2d at 460 n.11, 461 n.17.
. 42 U.S.C. § 4912 (1976).
. 40 C.F.R. § 204.56(a)(1) (1979).
. 42 U.S.C. § 4912(a)(3) (1976).
. 40 C.F.R. § 204.55-1 (1979).
. 42 U.S.C. § 4909 (1976); Atlas Copco, Inc. v. EPA, supra note 3, 206 U.S.App.D.C. at - n.17, 642 F.2d at 461 n.17; see Brief for Petitioners at 47; Brief for Respondents at 61; Reply Brief for Petitioners at 23.
. Atlas Copco, Inc. v. EPA, supra note 3, 206 U.S.App.D.C. at - & n.17, 642 F.2d at 461 & n.17.